UK and US must change policy on drone strikes, MPs told at Parliamentary debate of FLJS policy brief

28 January 2015

A Foundation for Law, Justice and Society Policy Brief investigating the legality of drone strikes to kill members of terrorist groups was the subject of a discussion by MPs and legal experts at the House of Commons yesterday, when the All Party Parliamentary Group on Drones met to consider the findings of the briefing.

The meeting was hosted by Tom Watson MP, Chair of the APPG on Drones, who acknowledged the role of the Oxford Foundation for Law, Justice and Society in publishing the policy brief, and described the Foundation’s mission to bridge the gap between academia and policymaking as invaluable.

Rory Millson, the lead author of the policy brief entitled Killing by Drones: Legality under International Law opened the discussion by claiming that the US had indeed violated international law by not notifying the UN Security Council that it was conducting drone strikes in Pakistan. Mr Millson, who headed an eighteen-month investigation into the legality of drone strikes that led to the publication earlier this month of the policy brief, called on the US government to change its policy of secrecy, arguing that they must disclose more information on drone strikes in order to comply with international law and to prevent further radicalization of individuals in the affected regions.

Describing the position of the US on armed conflict as “largely unintelligible” and the involvement of the CIA as “entirely unproductive”, he attributed the excessive secrecy behind the drones programme to the delegation of that programme to the CIA, since they are required under domestic law to act covertly, and can therefore neither admit mistakes when civilians are accidentally killed, nor counter allegations and untruths about drone policy in the propaganda war with terrorist groups.

Mr Millson expressed grave doubts that the courts would be able to provide a definitive judgment on the legality of drones, given the experience of families of victims who have tried to bring claims against the UK government, such as the case of Noor Khan, whose father was one of over forty tribal leaders in Pakistan who were killed in a drone strike.

Mr Millson was followed by Professor Robert McCorquodale, Director of the British Institute of International and Comparative Law and lawyer for Noor Khan in the case he brought against the UK government. Professor McCorquodale drew the distinction that the UK employs military pilots to operate drones, whereas the US employs the CIA. He demonstrated that this distinction was crucial under international law, since the user of a drone in international armed conflict can invoke legal immunity, but only if they are a part of the military of one of the parties to an international armed conflict.

He argued that, in each of the countries in which lethal drone strikes have been carried out, the conflict is not, in fact, international, but an internal conflict with no lawful ‘combatants’, so deaths as a result of drone strikes should be legally considered to be murder. He went on to say that those in the intelligence services who pass information on to the drone user in the knowledge that it will result in a lethal strike are therefore “accessories to murder”.

Those in the intelligence services who pass information on to the drone user in the knowledge that it will result in a lethal strike are “accessories to murder”

Following the two presentations, questions were taken from the floor, where MPs, Lords, members of the Ministry of Defence, and representatives of NGOs questioned the two speakers on issues including the increasing automation of military drones and compensation for the families of civilian victims of drone strikes.

The policy brief is the result of an eighteen-month investigation by the New York City Bar Association’s International Law Committee into the legality of US drone strikes, which can be downloaded from the NYC Bar Association website.

An audio podcast of the discussion will be available to download from our Podcast pages in the coming weeks.

Killing by Drones: Legality under International Law
Rory O. Millson and David A. Herman, New York City Bar Association International Law Committee